Senators Exert ‘Silent Veto’ Over Potential Judges

President Obama’s recent nominations of federal judges in Georgia – including one who supported regressive voters ID laws and another who favored retaining the confederate emblem as part of the state flag – highlights a failed system that effectively allows home-state U.S. senators to veto presidential judicial selections.

To his credit, Rep. John Lewis (D-Ga.) and other civil rights leaders are pushing back on a deal struck by President Obama to get three of his judicial appointees approved in exchange for the objectionable Republicans backed by Georgia’s two GOP senators being included in the package.

“The group cites serious concerns that the proposed candidates do not adequately reflect the diversity of the northern district and that the selection process lacked meaningful community input,” Lewis said in a statement. “Additionally, the coalition finds it troubling that several nominees include persons who have advocated in favor of Georgia’s voter ID laws and for including the Confederate Battle Emblem as part of the Georgia State Flag.”

Under a plan approved by President Obama, vacancies on the Atlanta-based 11th Circuit Court of Appeals, which covers cases on appeal from Georgia, Alabama and Florida, would be filled by U.S. District Court Chief Judge Julie Carnes, who was appointed to the bench in 1991 by President George H.W. Bush, and Jill Pryor, a past president of the Georgia Association for Women Lawyers.

The elevation of Carnes would create a total of four vacancies on the Northern District of Georgia bench. Selected to fill those slots are Atlanta attorney Leigh Martin May, DeKalb County State Court Judge Eleanor Ross, Georgia Court of Appeals Judge Michael Boggs and Atlanta lawyer Mark Cohen.

Of the six, only Ross, an African-American, is a person of color.

The Administrative Office of the U.S. Courts has declared the four district court vacancies, which have been open since February 2009 and January 2010, judicial “emergencies.” The 11th Circuit vacancies have been in existence since August 2010.

The Obama administration has cleared three of the judges – Cohen, Ross and Boggs – with Georgian’s Republican Senators Saxby Chambliss and Johnny Isakson, according to the Atlanta Journal-Constitution.

Rep. Lewis and fellow Presidential Medal of Freedom winners Joseph Lowery and C.T. Vivian have objected to Cohen because he was the lead defense attorney in challenges to Georgia’s restrictive voter ID law. They oppose Boggs who, as a member of the state legislature, voted to keep in place the Confederate-themed Georgia state flag.

Obama’s willingness to horse trade with Georgia’s two conservative senators underscores the veto power senators hold over judicial nominees from their state.

Under an arcane custom began in 1956 under Mississippi segregationist Sen. James O. Eastland, the chairman of the Senate Judiciary Committee sends a blue-colored form to the senators of the state where the president has nominated someone to be either a federal judge, a U.S. marshal, or a U.S. attorney. The senators, in turn, can submit a favorable or unfavorable opinion of a nominee. They also have the option of not returning the blue slip, which is viewed as a rejection. The Senate Judiciary Committee takes blue slips into consideration when deciding whether to recommend Senate confirmation. In the past, the system has been used by both Democrats and Republicans to derail candidates who did not share their ideology.

From 1956-1979, a senator’s objection to a nominee would stop all further consideration. In recent years, the blue-slip policy has been modified to supposedly prevent home-state senators from having such absolute power over nominees from the state. Still, Senators continue to exert tremendous influence in the flawed process.

Because the blue-slip policy has been in effect for so long, Blacks are grossly underrepresented on the federal bench.

The African-American population in Georgia, for example, is 31 percent, more than double the national average of 13 percent. Blacks comprise 26.5 percent of Alabama’s population and almost 17 percent of Florida’s population. Yet, of the 12 judges representing the 11th Circuit, which covers those states, only one, Charles Wilson, is Black. The only other person of color is a Cuban, Adalberto Jordan of Miami.

Similarly, the U.S. District Court bench in Atlanta has only one African-American, Steve Jones, sitting as a full-time judge; the other 10 judges are White. The federal court in Macon has only had one African-American judge in its history and Savannah has never had a Black judge.

Although Senate Democrats won a victory of sorts by changing procedures so that administration nominees can win approval on a simple majority vote, President Obama still faces hurdles appointing judges because of an arcane Senate blue-slip procedure that has been referred to as a “silent veto.”